Clark v. Chicago, R. I. & P. Ry. Co
Decision Date | 07 December 1927 |
Docket Number | No. 26361.,26361. |
Citation | 300 S.W. 758 |
Court | Missouri Supreme Court |
Parties | CLARK v. CHICAGO, R. I. & P. RY. CO. |
Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.
Action by Joseph I. Clark against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Luther Burns, of Topeka, Kan., and Henry S. Conrad, L. E. Durham, and Hale Houts, all of Kansas City, for appellant.
J. E. Addington, of Topeka. Kan., and Hogsett & Boyle, of Kansas City, for respondent.
Action for personal injuries, bottomed upon the alleged violation of the Federal Safety Appliance Act (45 USCA § 1 et seq.; U. S. Comp. St. § 8605 et seq.). The issues, however, for our determination, have been much simplified by admissions made by learned counsel for appellant. Plaintiff was the head brakeman on his train, and his position when train was moving, was upon the engine. He was required to inspect, at each stop, the running gear under the cars, for hot boxes,. trouble in the brake rigging, and such things about the under equipment of the car. The rear brakeman had a like duty, and it appears that they would leave their respective places (when the train stopped) and inspect one side, and, when they met in or about the middle of the train, they crossed over, and the head brakeman returned toward the engine (inspecting as he went along) and the rear brakeman returned to the other end of the train doing the same. Counsel for appellant, in their statement say:
Later in the printed argument counsel say:
These concessions cut out the things that are usually hotly contested in cases of this character. 'Upon trial before a jury, plaintiff had a verdict (signed by nine jurors) for $25,000. The trial court, upon the hearing of the motion for new trial, required a remittitur of $10,000, and, such remittitur being entered, the motion for new trial was overruled, and Judgment entered for $15,000. From this judgment comes this appeal.
The assignment of errors shows just what questions the appellant's counsel consider to he in the case, after concessions and admissions aforesaid. These assignments are short and pointed, and we quote them in full, as follows:
Going to "Points and Authorities," we and the following, which is not mentioned in the assignments we have quoted supra:
"(b) Instruction V was erroneous in authorizing the jury to award plaintiff damages for loss of future earnings without limiting such award to the then `present cash value' thereof."
Instruction V is not mentioned in the formal assignments of error. But, even considering that instruction V is properly assigned as error, the only issues for consideration are as to instructions I, II, and V, given for plaintiff and the excessiveness of the verdict and of the judgment after remittitur. The court refused plaintiffs' instructions II and III as asked, and modified them and gave them. This fully appears In assignments 2 and 3 supra. No contention that plaintiff did not make a case for the jury. This outlines the case, and pertinent evidence bearing upon the contentions will be noted in the course of the opinion.
I. Instruction I for the plaintiff is the subject of the first complaint made by appellant. This complaint can best be gathered from what appellant says about the instruction, because there are admissions as to the instruction and its meaning and effect which will shorten our inquiry. First learned counsel for defendant say:
In the course of the printed argument counsel attempt to make clear just what they contend is wrong with instruction I. They say:
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